Gloria Gormley, Complainant,v.Bruce Babbitt, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionFeb 18, 2000
01973328 (E.E.O.C. Feb. 18, 2000)

01973328

02-18-2000

Gloria Gormley, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.


Gloria Gormley v. Department of the Interior

01973328

February 18, 2000

Gloria Gormley, )

Complainant, )

)

v. ) Appeal No. 01973328

)

Bruce Babbitt, ) Agency No. LLM-95-082

Secretary, )

Department of the Interior, )

Agency. )

____________________________________)

DECISION

Gloria Gormley (complainant) filed an appeal with this Commission from

a final decision of the Department of the Interior, Bureau of Land

Management (hereinafter "BLM" or "agency") concerning her complaint of

unlawful employment discrimination, in violation of Title VII of the

Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et

seq., and the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791

et seq.<1> Complainant's claim of discrimination, as defined by the

agency, is based upon her sex (female), race (White), national origin

(Hispanic), and disability (pregnancy), when:

In February, 1993, she assumed the duties of the Public Affairs Assistant,

and her supervisor never submitted a position description to personnel

to reflect the accretion of duties;

In May, 1993, she advised her supervisor that she was pregnant and the

supervisor said that she hoped it would not affect complainant's work

performance;

In May, 1993, her supervisor told her, "when I say you're going to do

something, you will do it;"

On February 8, 1994, she did not receive an "Outstanding" on her 1993

Performance Improvement and Position Review (PIPR);

In June, 1994, she advised her supervisor that she was pregnant, and

she said, "Don't you believe in birth control;"

In February, 1995, she received an unfair PIPR review and rating ("Fully

Successful") (level 3 rating) which she appealed, and the results of

the appeal were not provided to her until after she took the Voluntary

Separation Incentive Payment (buyout);

In February, 1995, her supervisor sent her a draft letter that was

eighteen (18) days late which resulted in her assignment being completed

late and reflected poorly on her performance; and

On April 3, 1995, she was forced to resign from her position with

the agency because of the harassment and discrimination that she was

subjected to from 1993 through 1995.

The appeal is accepted in accordance with EEOC Order No. 960.001.

Complainant sought EEO counseling on March 15, 1995. Following the

filing of a formal complaint and an investigation, complainant requested

an agency decision without a hearing. The agency issued a final agency

decision of no discrimination on February 13, 1997. It is this agency

decision which complainant now appeals.

Complainant was hired by the BLM in November, 1990. Her position at

the time was Secretary (Typing), GS-318-5, Office of the State Director,

Office of External Affairs, New Mexico State Office, Santa Fe, New Mexico.

In 1992, a new supervisor (female, White, non-Hispanic, no disability)

(S1) assumed first-line supervisor responsibilities over complainant

and all other employees under the GS-9 level.

Complainant alleges the following:<2> In February, 1993, S1 rated

complainant's performance for the period January, 1992 through

December, 1992 at a level 4 (Exceeds Fully Successful). Complainant

claims that, approximately 30 days following this rating, she assumed

the Public Affairs Assistant, GS-7 duties, in addition to her own

duties, because the individual previously performing those duties was

reassigned on March 7, 1993. Complainant asserts that S1 assured her

that as soon as she officially assumed the new duties S1 would resubmit

complainant's position description to personnel.

Complainant further asserts that in May, 1993, she advised S1 that she

was pregnant. In response, S1 allegedly stated that she hoped it would

not affect complainant's work performance and that she would not receive

preferential treatment. Complainant asserts that after she advised

S1 of her pregnancy, she began to receive adverse treatment which she

considered to be harassment.

For example, complainant asserts that a lower grade employee (C1)

(female, disability status unknown, national origin unknown, race unknown)

questioned complainant about taking a break. Complainant explained to

C1 that she informed the acting supervisor that she was taking a break.

C1 explained that she was in charge when S1 was absent. According to

complainant, C1 closely questioned and monitored her work. Complaint was

disturbed by this treatment coming from a co-worker. The following day,

S1 told complainant that the rules in the office were to be followed

and that there would be some changes made.

Two weeks later, C1 told complainant that S1 instructed her to make

a telephone call to the Public Affairs Specialist at the Farmington

District Office regarding photographs taken by the Public Affairs

Specialist. Complainant was asked to make the call because C1 and the

Public Affairs Specialist did not get along and previously engaged in a

verbal confrontation. Complainant states that after several calls back

and forth, she suggested that C1 call the Public Affairs Specialist

directly. Shortly thereafter, complainant asserts that S1 showed up

"out of control, viciously waving her finger" at complainant and said

"when I say you are going to do something, you will do it." Complainant

further asserts that S1 had a history of siding with C1 over any dispute.

Later in May, 1993, complainant miscarried. Complainant attributes the

miscarriage to the harassment that she was receiving at work.

On January 31, 1994, S1 rated complainant's PIPR for the period

January 1, 1993 through December 31, 1993 at a level 4 (Exceeds Fully

Successful). The PIPR noted that complainant was performing at an

Outstanding level from July, 1993 through December, 1993. In addition,

the PIPR noted that complainant's position description was not accurate

and did not reflect all of complainant's duties. The PIPR was ultimately

re-written to reflect all of complainant's responsibilities. However,

complainant notes that her position description was never rewritten.

According to complainant, in 1994, S1 limited the staff's opportunity

to earn credit hours to those circumstances where an employee was in

training or on special assignments. Complainant further asserts that

this new policy applied to all employees at the GS-9 level and lower,

but did not apply to S1.

Complainant further alleges that in May of 1994, she informed S1

that she was pregnant again. According to complainant, S1 responded,

"don't you believe in birth control?" Shortly thereafter, complainant

asserts that S1's attitude toward her changed again. Also in May,

1994, complainant asserts that S1 stated to her, "Hispanic women are

the laziest people I have ever worked with."

In June, 1994, complainant miscarried a second time. Again, she

attributed the miscarriage to the stress she was under at work which

was allegedly caused by the harassment and discriminatory treatment

toward her.

In January, 1995, complainant informed S1 and the staff that she was

pregnant again. Shortly thereafter, complainant asserts that she provided

one of her supervisors (S2) (female, American Indian, Cowlitz/Quinault,

no disability) a medical note from her physician which stated "Please

allow [complainant] to take off work whenever she feels cramping pressure,

due to pregnancy complications. She is under my care for prenatal care.

Her due date is 8/12/95."

Complainant further asserts that in February, 1995, S1 held onto a draft

document which needed revisions before forwarding it to complainant.

Accordingly, complainant received the draft 8-days after the due

date and submitted the final version to the Washington Office late.

Also in February, 1995, while complainant was on sick leave, S1 called

complainant's husband at work and asked him to relay a message to

complainant. Complainant and her husband did not have a home telephone.

S1 asked that complainant provide the passwords to the computer systems

that she accessed so that when she was absent from the office, the

supervisors/staff could have access to the computer system. In response,

complainant reminded her supervisors (S1 and S2) that she was trained

not to reveal personal/confidential passwords to anyone.

In March, 1995, complainant asserts that S2 called a meeting to discuss

her expectations of the External Affairs Staff. However, the majority

of the day was spent discussing complainant's duties with input from

the staff on how they felt her work was to be performed and the amount

of time they felt it should take complainant to perform the work.

Complainant felt singled out.

In late March, 1995, S2 and the Associate State Director (D1) met with

complainant to discuss her attendance. According to complainant, S2

explained that the Office of External Affairs could not function without

a full-time assistant at work each day. Accordingly, complainant was

given the option of either being at work each day or taking a leave of

absence until she could make the commitment to be at work each day.

On April 3, 1995, complainant took a Voluntary Separation and

Incentive Payment (Buyout) and resigned. Complainant alleges that the

discrimination and harassment which she incurred since April, 1993 forced

her to resign.

FINAL AGENCY DECISION

In its Final Agency Decision (FAD), the agency dismissed allegations 1, 2,

3, 4, and 5 for failure to contact an EEO Counselor in a timely manner.

The FAD also found that the continuing violation exception was not

applicable with respect to those allegations because they occurred

between February, 1993 and June, 1994, approximately seven months

prior to complainant's timely allegation (6). In addition, the FAD

determined that allegations 1-5 were not analogous or related to the

timely allegation (6). Specifically, the FAD found that allegation

6 pertains to an issue involving an alleged unfair Fully Successful

rating. By contrast, the FAD found allegation 1 involves complainant's

1993 position description and accretion of duties. Allegations 2 and

5 involves issues surrounding two pregnancies. Allegation 3 deals

with an alleged stern remark complainant's supervisor made regarding

subordination. Allegation 4 deals with complainant's dissatisfaction

with her level 4 (Exceeds Fully Successful) rating in February, 1994.

According to the FAD, these issues are either isolated or dissimilar in

certain instances with no discernable nexus or credible evidence to show

a pattern of discrimination as tied to complainant's timely allegation.

Lastly, the agency noted that the alleged incidents occurred under four

different management officials and/or supervisors.

In addition, the FAD also found allegations 2, 3, and 5 required dismissal

for failure to state a claim. With respect to allegations 7 and 8,

the FAD found that such allegations were never informally processed

(i.e. counseled) or raised during the informal EEO Counseling. Nor were

they investigated. Accordingly, the FAD directed the complainant to

contact an EEO Counselor and undergo informal EEO counseling on those

allegations.

With respect to the merits of allegation 6, the FAD found that complainant

failed to show that she was a qualified individual with a disability

within the meaning of the Rehabilitation Act. Accordingly, the FAD found

no discrimination with respect to disability. However, the FAD went on

to discuss complainant's pregnancy with respect to her sex discrimination

claim. The agency determined that complainant failed to establish a prima

facie case of sex, race, or national origin discrimination. Specifically,

the agency found that there were no similarly situated persons outside

complainant's protected classes who were rated by S1, in that complainant

was the only Staff Assistant in her office. The agency also noted that

two identified employees (both white, female, Hispanic, not pregnant)

were rated by S1. One employee (C2) (female, not pregnant, white,

Hispanic), who held a different position from complainant, received an

"Outstanding" rating for 1994 from S1. Another employee (C3) (female,

not pregnant, white, Hispanic), who also held a different position from

complainant, received a "Fully Successful" rating for 1994 from S1.

The agency also found that complainant failed to present a prima facie

case of discrimination with respect to the delayed receipt of the results

of complainant's appeal of her 1994 performance rating. Specifically,

the agency noted that complainant was the only individual who appealed her

performance rating. In addition, the agency noted that the record shows

that complainant was aware of the fact that the Review Panel's meeting

would not be able to take place until after her resignation date. Lastly,

the agency found that there was no evidence that management deliberately

or willfully, withheld or delayed results of complainant's appeal to

discriminate against her on account of her sex, race, or national origin.

ANALYSIS AND FINDINGS

As a preliminary matter we find that the agency improperly fragmented

complainant's claim. (See MD-110, as revised, November 9, 1999, pp. 5-5

through 5-9.) Based upon a review of the record we find complainant's

claims are properly framed as follows.

On the basis of her sex (female/pregnancy), disability (pregnancy),

race (White) and national origin (Hispanic), complainant was treated

differently in the terms and conditions of her employment between

February, 1993 and April, 1995, by management's attempt to thwart

complainant's opportunity for promotion; and

On the basis of her sex (female/pregnancy), disability (pregnancy), race

(White) and national origin (Hispanic), between February, 1993 and April,

1995, complainant was subjected to a hostile work environment which

ultimately led to her constructive discharge.

The agency argues that complainant's allegations previously numbered

7 and 8 were not formally processed (ie. not raised in the initial

counseling and not investigated). Accordingly, the agency failed to

address these claims in its FAD. While allegations 7 and 8 were not

raised in the initial EEO counselor contact, they are sufficiently like

or related to the complainant's original claims that they should have

been formally added to complainant's complaint at any time prior to

the agency's mailing of the notice required under 64 Fed. Reg. 37,644,

37,656 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �

1614.108(f). See 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified

and hereinafter referred to as 29 C.F.R. � 1614.106). While the agency

failed to formally amend the complaint, contrary to the agency, we find

the record appropriately developed on all issues, including allegations

formerly numbered as 7 and 8, in accordance with 29 C.F.R. � 1614.108(b).

Lastly, while the FAD advises the complainant to contact an EEO counselor

and undergo informal counseling with respect to allegations formerly

numbered as 7 and 8, there is no evidence in the record, or otherwise,

that complainant pursued this option. Accordingly, we shall include

allegations formally numbered as 7 and 8 in our analysis of the merits

of complainant's claims as re-framed supra.

Continuing Violation

We find that the various allegations were improperly dismissed pursuant

to 29 C.F.R. � 1614.107(a)(2). Each claim, as re-defined supra, has a

timely incident (i.e., the February, 1995 unfair PIPR review (Claim 1)

and the April, 1995 constructive discharge (Claim 2)). The remaining

incidents pertaining to Claims 1 and 2 are interrelated by a common

nexus and sufficiently associated with or connected to the subject matter

and temporal scope of the complaint. See Howard-Grayson v. USPS, EEOC

Request No. 05990160 (December 3, 1999). Accordingly, we find that the

continuing violation exception applies herein.

Failure to State a Claim Dismissals

We find that the agency also improperly dismissed allegations formerly

numbered as 2, 3, and 5 because it improperly fragmented the claims.

Disparate Treatment and Hostile Work Environment

While the agency improperly fragmented and dismissed portions of

complainant's claim, we nevertheless AFFIRM the agency's finding of

no discrimination.

As a preliminary matter, for the purpose of this decision, we assume

arguendo, that complainant is a qualified individual with a disability.

ClAIM 1 � ALLEGED DISPARATE TREATMENT WITH RESPECT TO PROMOTION

OPPORTUNITIES

Prima Facie Case

While we find that: (1) complainant has failed to identify comparable

individuals outside her protected classes who received more favorable

treatment; and (2) the record does not support complainant's assertions

that S1 made derogatory comments regarding her pregnancy and Hispanics,<3>

we nevertheless assume, for the purpose of this decision, that complainant

has presented a prima facie case of disability, race, national origin

and sex discrimination.

Legitimate, Non-discriminatory Reasons for the Agency's Employment

Actions

We also find that responsible management officials articulated legitimate,

non-discriminatory reasons for their employment actions as follows:

Revision of Complainant's Position Description

According to S1, she spoke with S3 about the subject of complainant's

revised position description. While S1 did not remember the reason

given by S3, she remembered that S3 did not approve further processing of

complainant's rewritten position description. While S1 was not sure that

complainant's accrued duties would have warranted a promotion, she did not

think there was any harm in processing the request if S3 had approved it.

S3 testified that he did not remember S1 approaching him with a request

to promote complainant. However, if she did, S3 affirmed that he may

have tabled the request until plans were finalized for the restructuring

of the office. The planning started in 1992 and was not finalized until

July, 1994. S3 further affirmed that he never told S1 to forget putting

complainant in for a promotion. Furthermore, S3 stated that had S1

submitted a formal request to upgrade complainant's position, he would

have submitted it to Personnel for their action, since the decision to

upgrade a position would have been ultimately decided by that office.

1993 Performance Evaluation Received in January, 1994

While S1 noted that complainant performed at an "Outstanding" level

for the latter six months of 1993, S1 believed that complainant did not

perform at that level during the first six months. Therefore, S1 did

not believe that an "Outstanding" rating was justified.

1994 Performance Evaluation Received in January, 1995

Based upon the documentary evidence and testimony of S1, D1,<4> and

S2, the record indicates that complainant's performance during 1994

was unacceptable. (See Affidavits of S1, D1 and S2; April 4, 1995

memorandum from S1 to Personnel Management Specialist.) However, afraid

that complainant would be outraged by such a low performance rating,

S1 struggled with the decision between awarding complainant a rating of

"Exceeds Fully Successful" (level 4) or "Fully Successful" (level 3).

After advice from, inter alia, D1, S2, and an Employee Specialist,

S1 decided to give complainant a "Fully Successful" (level 3) rating.

General Position of the Responsible Management Officials

The record indicates that complainant was involved in a serious automobile

accident in 1991 where she suffered physical injuries and her child

and mother were fatally injured. Upon return to work, management went

out of their way to make things easier for complainant (i.e., gave

complainant greater flexibility in her work hours, reassigning the more

complex work to other staff members to alleviate stress for complainant,

permitting complainant to take her other child to work and to take her

to physical therapy).

The record further supports the finding that the entire staff and

management officials fully supported complainant during her pregnancies

and when she was recovering from her miscarriages. As indicated,

supra, S2 categorically denies making any derogatory statements about

complainant's pregnancy. Moreover, S1 affirmed that she conveyed to

complainant that she was happy for her when she was informed of the

pregnancies. The record also indicates that during these periods,

complainant frequently was out on leave.

With respect to time and attendance issues, S1 advanced a lot of leave

to complainant and allowed her to use credit hours as well. The record

further shows that S1 announced and reaffirmed the policy of obtaining

advanced approval before using credit hours in January, 1994 because

she had been in the position of having to approve credit hours when she

did not know if the hours were legitimate. The record shows that this

policy applied equally to all staff.

S1 also denies monitoring any of the employees' time or having anyone

monitor the staff for her. According to S1, as long as the work got done,

it did not bother her that staff members were late. The record shows

that the office adopted the idea to make a game of being late by paying

25 cents to a pot (for pizza) whenever arriving or returning fifteen

minutes late. S1 explains that on one occasion complainant came back

from lunch very late and C1 joked with complainant that she would owe two

quarters that day since she was quite late. Complainant took offense

by C1's comment. The discussion resulted in both of them raising their

voices and crying.

On the days that complainant did not come in to work, her husband would

usually call S1 once he got to work since complainant and her husband

did not have a home telephone. During complainant's last pregnancy,

the record shows that the staff was having problems accessing computer

information and completing tasks due to complainant's absence from

the office. Accordingly, complainant was asked to provide S2 with her

passwords to access the computer information. In an effort to determine

how to proceed while complainant was out of the office, S2 held a meeting

where it was discussed how complainant's work could be distributed to

others on the staff and how it could be accomplished more efficiently.

S1 denies ever intentionally delaying the processing of assignments to

complainant in order for her to look bad. S1 affirmed that she did not

talk to S2 about any problems with complainant's timeliness of work.

With respect to the specific assertion by complainant, S1 stated that

complainant is not considering that the response time was ten work days

rather than calendar days and that the specific period referred to by

complainant covered weekends and a holiday.

The record indicates that no management official, including S1, had

any involvement in complainant's decision to take the buyout. S1 even

encouraged complainant, in January, 1995, about utilizing the Family

Medical Leave Act (FMLA), suggesting that complainant consider using it

on a part-time basis.

Pretext

In addition to allegations which we have found unsubstantiated by

the preponderance of the evidence, complainant argues essentially

that two discrepancies exist with respect to S1's statements and the

record evidence which show that S1 acted with discriminatory animus.

The first alleged inconsistency pertains to the explanation given for

the failure to process complainant's re-written position description.

The record reflects that S1 stated that she spoke with S3 about the

subject of complainant's revised position description soon after she

received the draft from complainant. While S1 did not remember the

reason given by S3, she remembered that S3 did not approve further

processing of complainant's rewritten position description. S3, however,

testified that he did not remember S1 approaching him with a request to

promote complainant. However, if she did, S3 affirmed that he may have

tabled the request until plans were finalized for the restructuring of

the office since it was anticipated that after the restructuring many

position descriptions would need to be revised. The planning started

in 1992 and was not finalized until July, 1994. S3 further affirmed

that he never told S1 to forget putting complainant in for a promotion.

Furthermore, S3 stated that had S1 submitted a formal request to upgrade

complainant's position, he would have submitted it to Personnel for

their action, since the decision to upgrade a position would have been

ultimately decided by that office. We disagree with complainant and

do not find S1 and S3's testimony contradictory. Nor do we find such

testimony proof that S1 never intended to submit complainant's revised

position description to Personnel.

Upon review of the record as a whole, even assuming that complainant could

show that S1 never intended to submit her revised position description

to Personnel, the evidence does not support discriminatory animus as

the motive for such conduct.

The second alleged inconsistency raised by complainant pertains to

her 1993 PIPR rating where she received a "Fully Successful" (level 4)

rating rather than an "Outstanding" (level 5) rating. In that performance

review, S1 noted that complainant performed at the "Outstanding" level

for six months of that year and that continued performance for a full 12

months would warrant the "Outstanding" rating. Complainant contends that

she was the only employee that was held to such a standard, but could only

identify one individual who was treated more favorably. Specifically,

complainant notes that a co-worker (C4) (Female, White, Hispanic)

received an "Outstanding" rating for her 1992 PIPR after only 8 months

of government service. In addition,C4 received an "Outstanding" rating

in 1994, despite the fact that she detailed for two months during the

year 1994.

While there is no explanation in the record for the seemingly difference

in treatment between complainant and C4, we do not find this action

evidence of discriminatory animus since C4 is a member of complainant's

protected classes and complainant repeatedly asserts that S1 held a

personal bias in favor of C4 over the entire staff.

Accordingly, we do not find that complainant presented sufficient evidence

to prove pretext or discriminatory animus with respect to her disparate

treatment claim.

ClAIM 2 � ALLEGED HOSTILE WORK ENVIRONMENT RESULTING IN CONSTRUCTIVE

DISCHARGE

Harassment is actionable if it "had the purpose or effect of unreasonably

interfering with [complainant's] work performance and/or creating an

intimidating, hostile, or offensive work environment." See McCleod

v. Social Security Administration, EEOC Appeal No. 01963810 (August

5, 1999).

In the instant case, complainant alleges that she was harassed by S1

when, inter alia, her work duties and time in and out of the office

were closely monitored on a daily basis; and she was treated more

harshly and unprofessionally by her supervisor than other employees.

Assuming complainant's allegations state a claim of harassment, we find

the record reveals that the incidents described by complainant amount to

common workplace occurrences. Furthermore, we find that complainant has

failed to prove, by a preponderance of the evidence, that the employment

actions were somehow abusive or reasonably offensive, and were taken in

order to harass complainant on the basis of any of her protected classes.

See Wolf v. United States Postal Service, EEOC Appeal No. 01961559

(July 23, 1998); See also, Long v. Veterans Administration, EEOC Appeal

No. 01950169 (August 14, 1997). Since complainant has failed to prove

a Title VII violation, her constructive discharge claim must also fail.

Without addressing each and every incident cited by complainant, we find

that the record as a whole fails to support a finding of discrimination on

the basis of disability, race, sex, and national origin. Since appellant

presents no new or persuasive arguments on appeal, we discern no basis

to reverse the agency's finding of no discrimination. Accordingly,

it is the decision of the Equal Employment Opportunity Commission to

AFFIRM the final agency decision.

STATEMENT OF RIGHTS -- ON APPEAL

RECONSIDERATION (M1199)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the policies,

practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, MUST BE FILED

WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR

DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS

OF RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). All requests and arguments must be

submitted to the Director, Office of Federal Operations, Equal Employment

Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the

absence of a legible postmark, the request to reconsider shall be deemed

timely filed if it is received by mail within five days of the expiration

of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.604).

The request or opposition must also include proof of service on the

other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with your request for reconsideration. The Commission

will consider requests for reconsideration filed after the deadline only

in very limited circumstances. See 29 C.F.R. � 1614.604(c).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

You have the right to file a civil action in an appropriate United States

District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you

receive this decision. If you file a civil action, YOU MUST NAME AS

THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD

OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND

OFFICIAL TITLE. Failure to do so may result in the dismissal of your

case in court. "Agency" or "department" means the national organization,

and not the local office, facility or department in which you work. If you

file a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

2/18/00

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

2/18/00

Date Equal Employment Assistant

1 On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to

all federal sector EEO complaints pending at any stage in the

administrative process. Consequently, the Commission will apply the

revised regulations found at 64 Fed. Reg. 37,644 (1999) where applicable,

in deciding the present appeal. The regulations, as amended, may also be

found at the Commission's website at WWW.EEOC.GOV.

2 Complainant disputes most of the contents of her affidavit which

the investigator provided following an interview of complainant, but

has provided a supplemental statement for the record. Accordingly, the

Commission has disregarded the contested affidavit and instead considers

the supplement statement in its place.

3 While complainant has alleged that S1 made disturbing comments

to her such as "don't you believe in birth control," and "Hispanic

women are lazy," we find that the preponderance of record fails to

support complainant's allegation. S1 categorically denies making any

derogatory statement regarding complainant's pregnancy or Hispanic women.

In addition, despite complainant's assertions, none of the witnesses

identified by complainant confirmed hearing S1 make such statements.

Moreover, many of the witnesses found it unlikely that the alleged

statements were made by S1. It should be noted that complainant failed

to request a hearing at which the credibility of the witnesses could

have been explored.

4 D1 was the Reviewing Approving Official for complainant's 1994 PIPR.